Constitutional Court

KI137/23, Applicant: Naim Berisha, Constitutional review of Judgment Rev. no. 451/2022 of 23 November  2022 of the Supreme Court

KI137/23, Judgment of  18 January 2024, published on 20 February 2024

Keywords: individual referral, admissible referral, right to a fair trial

The Constitutional Court of the Republic of Kosovo decided regarding the case KI137/23, submitted by Naim Berisha, for constitutional review of the Judgment [Rev. no. 451/2022] of 23 November 2022 of the Supreme Court of the Republic of Kosovo, in conjunction with the Judgment [Ac. no. 3544/15] of 15 November 2019 of the Court of Appeals of the Republic of Kosovo and the Judgment [C. no. 2906/12] of 28 April 2015 of the Basic Court in Prishtina, submitted to the Court by the Applicant, based on paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court with five (5) votes for and three (3) against held that: (i) the referral is admissible; and (ii) that there has been a violation of paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution, in conjunction with paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The circumstances of the present case are related to a labor dispute, namely the employment relationship of the Applicant, as an actor in the National Theater of Kosovo and established in 2009 by a fixed-term contract signed with the Ministry of Culture, Youth and Sports of the Republic of Kosovo. According to the case file, on 9 November 2012, based on Government’s Regulation no. 5/2011 on the promotion and salaries of cultural creators and performers and professional cultural heritage employees, of 23 June 2011, and since his requests were rejected by the Ministry of Culture, Youth and Sports, by the lawsuit filed with the Basic Court in Prishtina, the Applicant requested (i) the change of the type of contract, namely the transition from a fixed-term contract to a regular employment contract, and ( ii) compensation for material damage, caused as a result of salary discrimination, compared to his colleague actors, namely the actor Sh.K., who, according to the Applicant, was classified with a higher salary coefficient. The Basic Court rejected the lawsuit of the Applicant on the grounds that (i) the legal criteria for changing the type of contract had not been met; and that (ii) there has been no discrimination in the working place in relation to other colleague actors of the National Theater of Kosovo. The Applicant filed an appeal with the Court of Appeals, which rejected it, by upholding the findings of the Basic Court. In the meantime, on 12 May 2015, the Ministry of Culture, Youth and Sports approved the Applicant’s request for transition from the fixed-term contract to a regular employment contract and this issue was not disputable anymore for the Applicant. Consequently, against the Judgment of the Court of Appeals, the Applicant filed a request for revision with the Supreme Court, claiming that the Court of Appeals has failed to assess the discrimination of the claimant’s salary in relation to the actor Sh.K.. The Supreme Court rejected as ungrounded the revision of the Applicant, upholding the findings of the Basic Court and the Court of Appeals.

Before the Court, the Applicant alleged violation of his constitutional rights guaranteed by articles 22 [Direct Applicability of International Agreements and Instruments], 23 [Human Dignity], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial] and 49 [Right to Work and Exercise Profession] of the Constitution, as well as articles 6 (Right to a fair trial) and 14 (Prohibition of discrimination) of the European Convention on Human Rights, because according to him, the Supreme Court in its reasoning addressed the issue of transition from a fixed-term contract to an indefinite-term contract, which issue was resolved in 2015 and as such is no longer disputable, but did not address the issue  of salary discrimination of the Applicant in relation to other colleague  actors, namely the actor SH.K, from 1 July 2011 to 30 April 2015.

Assessing the Applicant’s allegation regarding the reasoned decision, the Court (i) first elaborated the general principles related to the right to a reasoned decision, and (ii) applied the same to the circumstances of the present case. As it is clarified in the Judgment, the Court noted that the essence of the Applicant’s allegation required a specific response from the Supreme Court in addressing the issue of whether the latter was discriminated against in salary for the period 1 July 2011 – 30 April 2015 in relation to his colleague actors. In this regard, the Court assessed that the Supreme Court should have addressed the Applicant’s allegation precisely as the latter had specifically raised it in his request for revision. Therefore, according to the detailed elaborations in the Judgment, the Court noted that in the present case there has been a violation of the right to a reasoned decision, as a component of the right to a fair trial, guaranteed by paragraph 1 of Article 31 of the Constitution, in conjunction with paragraph 1 of Article 6 of the European Convention on Human Rights. Consequently, the Court, by its Judgment obliged the Supreme Court that, in the reconsideration of this case, assesses whether in the case of the Applicant, there has been a discrimination in salary or not, without prejudice to the assessment of the Supreme Court regarding this issue.

This translation is unofficial and serves for informational purposes only.